Siegley v. Kelley

• Decision Date: 10 April 1918
• Docket Number: 14361.
• Citation: 101 Wash. 73,172 P. 203
• Parties: SIEGLEY v. KELLEY et ux. Appeal of NAKATA.
• Court: Washington Supreme Court

172 P. 203

101 Wash. 73

SIEGLEY v. KELLEY et ux. Appeal of NAKATA.

No. 14361.

Supreme Court of Washington

April 10, 1918

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by E. E. Siegley against H. G. Kelley and Anita Ford Kelley his wife, and T. Nakata, wherein defendants Kelley and Nakata filed cross-complaints against one another. From decree for defendants Kelley, defendant Nakata appeals. Cause remanded with directions to modify the decree in accordance with the opinion.

Robert D. Hamlin and Walter A. Keene, both of Seattle, for appellant.

R. B Brown, of Seattle, for respondents.

ELLIS C.J.

The plaintiff in this action is not concerned in this appeal. The validity of his claim against the real estate in question is not denied by any of the defendants. The contest in the court below was waged between defendants Kelley and wife on the one hand, and defendant Nakata on the other, upon issues raised by their respective cross-complaints seeking to quiet title as against each other and their respective answers to such cross-complaints. Nakata claimed title through a sheriff's deed made to him as purchaser at sheriff's sale under an execution issued upon a judgment rendered in the superior court for King county and affirmed by this court in the case of Sakai v Keeley, 66 Wash. 172, 119 P. 190. The Kelleys claimed that the real estate in question was the separate property of Mrs. Kelley and had been so adjudged in another action to which Nakata was privy, hence was not subject to sale on execution under the Sakai judgment against her husband. They further claimed that in any event the Sakai judgment had been paid and should be satisfied of record. The trial court held with defendants Kelley on both of these contentions and entered a decree quieting the title in Mrs. Kelley, directing that the Sakai judgment be satisfied of record, and declaring the execution sale and sheriff's deed thereunder null and void. Defendant Nakata prosecutes this appeal.

Respondents move to strike the statement of facts, on the ground that it was not filed within the time limited by law, and ask that the decree be affirmed. The findings of fact and conclusions of law were signed and filed and the decree was entered on February 28, 1917. On March 29, 1917, appellant procured, on ex parte application, an order extending the time for filing the statement of facts for a period of 30 days from and after March 30, 1917. Appellant's proposed statement of facts was filed on April 5, 1917. On September 24, 1917, appellant filed in the trial court, and brings here by supplemental transcript, an affidavit of one of his attorneys to the effect that, shortly before procuring the order of extension, he orally advised respondents' attorney that the extension would be applied for, and that respondents' attorney then assured the affiant that he would interpose no objection to such application. It is conceded that no formal notice of the application for extension as required by Rem. Code, § 393, was given. That a copy of the order was subsequently served we regard as immaterial.

We have repeatedly held that an order extending the time for filing the statement of facts obtained on ex parte application is void. Michaelson v. Overmeyer, 77 Wash. 110, 137 P. 332; Austin v. Petrovitsky, 82 Wash. 343, 144 P. 26.

Unless, therefore, the facts set out in the affidavit above mentioned meet the statutory requirement of notice, or estop respondents from asserting their right to such notice, the statement of facts must be stricken. We are clear that they do neither of these things. The statutory requirement of notice means written notice. It cannot be assumed that the Legislature intended that the evidence of this jurisdictional step to the procurement of the extension might rest in parol often to be determined on conflicting testimony. That no estoppel arises follows as a corollary. The most that can be said for the facts set out in the affidavit is that they tend to establish an oral stipulation that the application would not be contested. As such it would legally bind no one. Humes v. Hillman, 39 Wash. 107, 80 P. 1104. In any event, it cannot be construed as a waiver of the statutory notice. To so hold would be to make the whole question of notice and waiver of notice rest in the uncertain memories of the parties or of their attorneys as to what was said and what was intended in every case. It would lead to needless uncertainty, endless confusion, and exasperating controversies. As said in Humes v. Hillman, supra, 'There must be a record here upon which the court can act.' The statement of facts must be stricken, and it is so ordered.

But an affirmance of the decree does not necessarily follow. The question remains: Do the findings of fact sustain the decree? The findings are extremely complicated and voluminous. We shall attempt no more than the following outline: On February 26, 1910, a judgment was entered by default against H. G. Kelley in the case of Sakai v. Keeley. An execution was issued thereon and levied upon lots 11 and 12 in block 14, Hillman City, division 6, the land here involved. Kelley brought an action against Sakai and the sheriff to restrain the sale and to vacate the judgment. Nakata intervened in that action, claiming to own the Sakai judgment as assignee of Sakai, and contested the action to vacate in the trial court and on Kelley's appeal to this court. Kelley, in order to stay the execution, filed in the action to vacate a stay bond with National Surety Company as surety conditioned that he as principal and the Surety Company as surety would pay the Sakai judgment if Kelley failed to have it set aside. Kelley failed in his action to vacate which was dismissed with $20 costs to defendants therein. That judgment was on appeal affirmed by this court. See Kelley v. Sakai et al., 72 Wash. 364, 130 P. 503.

While the action to vacate was pending in the Supreme Court, an execution was issued, without notice or knowledge on Kelley's part, on the judgment for $20 costs, and levy was made upon the real estate here involved which was thereafter sold by the sheriff to one Hall for and on behalf of Hamlin and Meier, then attorneys for Nakata. Hall and wife on June 20, 1914, assigned the certificate of sale to Robert D. Hamlin, who in due time procured a sheriff's deed conveying to him the land here in question. Hamlin then brought an action in ...